[2023] KESDT 195 (KLR)

Ukunda Vision Starlets v Football Kenya Federation & 5 others (Tribunal Case E009 of 2023) [2023] KESDT 195 (KLR) (25 April 2023) (Decision)

Neutral citation: [2023] KESDT 195 (KLR)

Republic of Kenya

In the Sports Disputes Tribunal

Tribunal Case E009 of 2023

John M Ohaga, Chair

April 25, 2023

Between

Ukunda Vision Starlets

Applicant

and

Football Kenya Federation

1st Respondent

FKF National Executive Committee

2nd Respondent

FKF Leagues & Competitions Committee

3rd Respondent

FKF Coast Region Committee

4th Respondent

Fortune Ladies Football Club

5th Respondent

Cabinet Secretary, Ministry of Youth Affairs, Sports and the Arts

6th Respondent

Decision

The Parties 1. The Petitioner is a Women’s football Club based in Kwale County which has brought this action through its team manager.

2. The 1st Respondent is the Football Kenya Federation (hereinafter ‘FKF’) a national sports organization responsible for managing and running the sport of Football in Kenya.

3. The 2nd Respondent is the Nationals Executive of FKF.???

4. The 3rd Respondent is the Leagues and Competitions Committee of FKF.

5. The 4th Respondent is the Coast Region Committee of FKF.

6. The 5th Respondent is a women football club based in Mombasa County.

7. The 6th Respondent is the Cabinet Secretary in the Ministry of Youth Affairs, Sports & the Arts.

The Claim 8. The Claim is as set out in the Petition lodged at the Tribunal on 7th March 2023. The Petition is accompanied by a Supporting Affidavit sworn by Martin Wekesa, the Team manager who is authorized by the Officials of the Petitioner.

Preliminaries 9. When the matter first came up on 13th March 2023, the Chairman of the Tribunal issued directions requiring the Petitioner to serve the Respondents with the Petition and accompanying documents within five (5) days of receipts of the Directions. The matter was set for mention on 21st March, 2023 to confirm compliance and for further directions.

10. On 21st March, 2023 mr Omwebu appeared for the 1st 2nd and 3rd Respondents, he noted that he was aware of the matter but that the Respondents were yet to be served with the Petition. He sought a further mention date to enable the Petitioner to serve the Respondents.

11. The Tribunal therefore directed that the Petition be served on the Respondents within seven (7) days and the matter be mentioned on 28th March, 2023.

12. On 28th March 2023, the firm of Litoro and Omwebu filed a Notice of Appointment on behalf of the 1st, 2nd and 3rd Respondents. Simultaneously with the Notice of Appointment was filed a Notice of Preliminary Objection. Upon mention of the matter the Tribunal directed that the preliminary objection be canvassed through written submissions.

13. On 6th April, 2023 the Petitioners filed a Response to the Preliminary Objection.

14. On 11th April, 2023 the 1st, 2nd and 3rd Respondents filed their written submissions in respect to the their Preliminary Objection dated 27th March, 2023.

15. On 11th April 2023, the matter was mentioned to confirm compliance and take a date for ruling. Mr Olala holding brief mr Omwebu for the 1st ,2nd and 3rd Respondents was present. There was no appearance for Petitioners.

16. The Petitioners filed their written submissions in respect of the 1st, 2nd and 3rd Respondents Notice of Preliminary Objection on 18th April 2023.

The Preliminary Objection 17. The Preliminary Objection is raised on a point of law on the grounds that this matter is res judicata. The objection is in the following terms:The Subject Matter of this Petition is premised upon the 2nd Respondents Resolution dated November 9th, 2022 in respect of the 2021/2022 League Season stipulating the manner in which resumption of football in Kenya was to be undertaken in the 2022/2023 season and that Resolution was the subject matter in SDTSC no E 036 of 2022 as consolidated with SDTSC no E038 of 2022 & SDTSC no E. 039 of 2022 (‘the Consolidated Cases’) which were determined on December 6, 2022 by the Honourable Tribunal hence these proceedings are an abuse of the court process and offending the doctrine of res judicata.

The 1st, 2nd and 3rd Respondent’s Arguments 18. As can be discerned from the Notice of Preliminary Objection, the 1st, 2nd and 3rd Respondents contend that the Tribunal lacks jurisdiction on the basis that there is an existing judgment of the Tribunal and thus the issues sought to be litigated are res judicata.

19. The 1st, 2nd and 3rd Respondents submission is that the instant petition is premised upon the 2nd Respondent’s resolution dated 9th November 2022 in respect of the 2021/2022 League Season stipulating the manner in which the resumption of football in Kenya was to be undertaken.

20. The Respondents relied on Section 7 of the Civil Procedure Act which they averred ousted the jurisdiction of a Court to try any suit or issue which had been finally determined by a court of competent jurisdiction in a former suit involving the same parties or parties litigating under the same title.

21. The 1st , 2nd and 3rd Respondents averred that the rationale behind res judicata is to ensure economic use of the courts limited resources and timely termination of cases. They averred that it promotes confidence in courts predictability and protects a party from facing repetitive litigation over the same matter.

22. The 1st , 2nd and 3rd Respondents relied on the case of John Florence Maritime Services Limited & another v Cabinet Secretary for Transport and Infrastructure & 3 others1 wherein the Court held that res judicata goes to the root of the jurisdiction of the court to entertain a dispute and if successfully ventilated, the doctrine will deny the court entertaining the dispute jurisdiction to take any further steps.1[2015] eKLR.

23. It is therefore the 1st , 2nd and 3rd Respondents assertion that the issues in the instant Petition are issues that this Tribunal, properly sitting has heard and rendered a competent decision. The 1st , 2nd and 3rd Respondents thus pray that the Petition be dismissed in limine as the issues herein have been litigated in common by the parties in the Consolidated Cases before the Tribunal.

The Petitioner’s Submissions 24. The Petitioner commenced their submissions by stating that the Petition did not relate to the Consolidated Cases and was not an abuse of the Court process.

25. The Petitioner avers that the grounds and issues under the Instant Petition are entirely on the Promotion of the Petitioner in the 2020/2021 Regional League.

26. The Petitioner asserts that the current petition had nothing to do with the 2021/2022 National League Season but related to Regional League in the 2020/2021 Season.

27. The Petitioner further asserts that the Respondent’s Preliminary Objection is an abuse of the court process and goes against the decision of the 2nd Respondent reached on 9th November, 2022 which affected the promotion of the Petitioner into FKF Division 1 Women League in the 2021/2022 Season.

28. The Petitioner avers that the Caretaker Committee in its determination on the Petitioner’s Appeal directed that the Petitioner play with the winners of pool A which the Petitioner did and won against Progressive Starlets FC thus granting the Petitioner promotion to the National Division 1 in the 2021/2022 Season.

29. The Petitioner relies on Article 69(5) of the FKF Constitution, 2017 which accords the Appeals Committee the jurisdiction to determine Appeals by parties dissatisfied with the decisions made by FKF Standing Committees. The Petitioners say that by dint of Article 69(5) of the FKF Constitution, 2017 the decision by the Caretaker Committee in the Appeal was final and thus the Petitioner ought to have been promoted to National Division 1 in the 2021/2022 Season.

30. The Petitioner further asserts that the matter herein is fresh and is a question on who qualified in the Regional League in the Coast Region in the 20020/2021 Season.

Discussion 31. The challenge to jurisdiction is premised on the existence of a Judgement rendered by the Tribunal in the Consolidated Cases premised on the 2nd Respondents Resolution dated 9th November 2022 in respect of the 2021/2022 League Season stipulating the manner in which the resumption of football in Kenya was to be undertaken in the 2022/2023 Season.

32. Prior to delving into the substantive issues raised the Tribunal will address the legal standard of a preliminary objection and then proceed to address the grounds placed before the Tribunal sequentially.

33. In Mukhisa Biscuit Manufacturers Limited v West End Distributors Limited 2 the Court observed as follows: -2[1969] E.A. 696, at page 700. “A Preliminary Objection consists of a point of law which has been pleaded or which arises by clear implication out of pleading and which if argued as Preliminary Objection may dispose of the suit.”

34. The Supreme Court addressed the nature of a preliminary objection in the case of Aviation & Allied Workers Union Kenya v Kenya Airways Ltd & 3 Others 3stating as follows:3[2015] eKLR“A preliminary objection may only be raised on a ‘pure question of law’. To discern such a point of law, the Court has to be satisfied that there is no proper contest as to the facts.”

35. The Respondent has sought the dismissal of the Petitioner’s suit via a Notice of Preliminary Objection on the basis that the same is res judicata.

36. The substantive law on Res Judicata is found in Section 7 of the Civil Procedure Act, Cap 21 which provides that:“No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court”

37. Black’s Law Dictionary 10th Edition defines “res judicata” as:“An issue that has been definitely settled by judicial decision…the three essentials are (1) an earlier decision on the issue, (2) a final Judgment on the merits and (3) the involvement of same parties, or parties in privity with the original parties…”

38. The Tribunal has carefully considered the contents of the Petition as well as the Supporting Affidavit, Response to the Notice of Preliminary Objection as well as the Petitioner’s Submissions. The Tribunal has also considered the 1st ,2nd and 3rd Respondents’ Notice of Preliminary Objection and their Submissions.

39. It is not in dispute that the gravamen of the suit is the 2nd Respondent’s Resolution dated November 9th, 2022, in respect of the 2021/2022 League Season stipulating the manner in which resumption of football in Kenya was to be undertaken and the promotion of the Petitioner.

40. Challenges to jurisdiction under the doctrine of res judicata are important in adjudication of matters as they prevents multiplicity of suits which would ordinarily clog the courts, and heave unnecessary costs on the parties to litigate and defend two suits which ought to have been determined in a single suit and it ensures litigation comes to an end; with disappointed parties being barred from camouflaging already decided cases in new garments in the art of pleadings.

41. As aptly held by the Court of Appeal in James Njuguna Chui v John Njogu Kimani4 held:4[2017] eKLR“The rationale behind the rule is simple, there has to be an end to litigation and a person who has approached the courts and had his dispute decided must learn to live with it. It is not open to him to relitigate or reagitate the issue before the same or another forum in the hope of getting an improved or a better result. It is a pragmatic rule designed to stop vexatious litigants from pestering those with whom they have disputes and so it protects the other party from the spectre of endlessly repetitive litigation hanging over their heads like the sword of Damocles. It also protects the court system from abuse such as would bring the administration of justice into disrepute not only by having the same decision pronounced over and over by the same or similarly situated courts but, worse, by having contradictory decisions emanating from the court or courts over the same issue, courtesy of the repeat litigation.”

42. The Tribunal acknowledges that jurisdiction is a threshold issue which must be dealt with and determined at the outset.

43. The test for determining the application of the doctrine of res-judicata in any given case is spelt out under section 7 of the Civil Procedure Act.

44. Indeed, the principles are clear. In Independent Electoral & Boundaries Commission v Maina Kiai & 5 Others 5the Supreme Court pronounced as follows:5[2017] eKLR,“While considering the said provision held that all the elements outlined thereunder must be satisfied conjunctively for the doctrine to be invoked. That is:(a)The suit or issue was directly and substantially in issue in the former suit.(b)That former suit was between the same parties or parties under whom they or any of them claim.(c)Those parties were litigating under the same title.(d)The issue was heard and finally determined in the former suit.(e)The court that formerly heard and determined the issue was competent to try the subsequent suit or the suit in which the issue is raised.”

45. It is instructive that an application on the basis of a matter being res judicata ought to be one on a point of law that must not be blurred with factual details liable to be contested and/or proved through the process of evidence. To this effect, on the first issue as to whether the suit or issue was directly and substantially in issue in the former suit, we find in the affirmative as the instant petition and the consolidated cases are as a result of the 2nd Respondent’s Resolution dated November 9th, 2022 in respect of the 2021/2022 League Season stipulating the manner in which resumption of football in Kenya was to be undertaken and find that there is sameness in the subject matter.

46. In E.T.V v Attorney General & another6 expounding the essence of the doctrine of res judicata, the Court stated as follows:6(2012) eKLR.“The courts must be vigilant to guard against litigants evading the doctrine of res judicata by introducing new causes of action so as to seek the same remedy before the court. The test is whether the plaintiff in the second suit is trying to bring before the court in another way and in a form a new cause of action which has been resolved by a court of competent jurisdiction.”

47. Applying the foregoing to the present case, on the second and third issue, we find that the parties in the Instant Petition and in the Consolidated cases were litigating under the same title and the suits involve parties in privity with the original parties.

48. On the fourth issue as to whether the issue was heard and finally determined in the former suit, we find that the judgment and directions issued on 6th December 2022 in SDTSC no E 036 of 2022 as consolidated with SDTSC no E038 of 2022 & SDTSC no E039 of 2022(the Consolidated Cases) were of nature of finality.

49. On the last issue as to whether the court that formerly heard and determined the issue was competent to try the subsequent suit or the suit in which the issue is raised, the answer is yet again affirmative.

Conclusion 50. Accordingly, the Preliminary Objection is hereby upheld. We find that the Petition filed on 7th March 2023 is res judicata SDTSC no E 036 of 2022 as consolidated with SDTSC no E038 of 2022 & SDTSC no E. 039 of 2022 and the same is hereby dismissed with no order as to costs.

DATED AND DELIVERED AT NAIROBI THIS 25TH DAY OF APRIL, 2023. SIGNED:.....................................................JOHN M OHAGA SC, CArbCHAIRPERSON, SPORTS DISPUTES TRIBUNAL